SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1847- 22 BRIAN LAUL, SR., Plaintiff-Respondent,

v. INSTANT AIR HEATING & COOLING, and JAIME DEDIOS, i ndividually and/or as agent, servant, and/or employee of INSTANT AIR HEATING & COOLING , Defendants-Appellants.

____ ____________________ __ ____

Argued January 30, 2024

– Decided August 22, 20 24 Before Judges Haas and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L

- 2297

- 19. Thomas W. Matthews argued the cause for appellants (Bennett, Bricklin & Saltzburg, LLC, attorneys; Thomas W. Matthews, of counsel and on the briefs ). Kevin L. Parsons argued the cause for respondent (Hanus & Parsons, LLC, attorneys ; Kevin L. Parsons, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1847

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PER CURIAM Defendants, Instant Air Heating & Cooling (Instant Air), and its employee, Jaime Dedios, appeal from a February 16, 2023, order entering a $3,367,401.42 judgment in favor of plaintiff Brian Laul, Sr. The judgment reflected a jury verdict for injuries plaintiff sust ained in an auto accident caused by defendants, and followed the entry of a February 3, 2023, order denying

defendants' motion for a new trial. We affirm. We glean these facts from the record. On October 1 2, 2017, plaintiff was driving on the Garden State Parkway when his vehicl e was struck by a tire that dislodged from a truck owned by Instant Air and driven by Dedios. Plaintiff filed a complaint against defendants on March 21, 2 019. In the complaint, plaintiff alleged he sustained "severe and permanen t" injuries because of defendants' negligence. On October 15, 2020, the trial judge granted plaint iff's unopposed summary judgment motion "as to all issues of liability." As a result, the case proceeded to trial on damages only. Prior to trial, plaintiff moved in limine to exclud e certain evidence. By way of background, in addition to the October 12, 2 017, automobile accident at issue, plaintiff had been involved in two other aut omobile accidents

— the first occurred on January 30, 2012, and the second occurr ed on December 4, 2017.3 A- 1847

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In the in limine motion, plaintiff sought to bar all refe rences to the December 4, 2017, accident and associated medical treatment as well as to "redact [] " all questioning about the accident posed to his expert, Dr. Joshua Landa, during a July 1, 2021, de bene esse deposition. Defendants opposed the motion. On August 6, 2021, the judge denied plaintiff's motion , agreeing with defendants

that the evidence bore on "the issues of credibilit y and causation." Trial began on December 7, 2022. Plaintiff testified that during the October 12, 2017, accident, the tire from defendant s' truck struck his vehicle "[o]n the passenger bumper, grill, and hood area," resulting in both the driver and passenger air bags deploying and hitting plaint iff "in the face," "torso[,] and arm." Plaintiff experienced pain in his "neck," "l eft shoulder, [and] left arm," and was taken by his son to the Robert Wood Johnson University Hospital Emergency Room, where he received a "quick examinat ion and x- ray ." A couple weeks later, on October 30, 2017, plainti ff was treated by Dr. Sheref Hassan, an orthopedic surgeon at the Landa S pine Orthopedic Center who was qualified as an expert in the field of orthopedi c medicine. Plaintiff testified that he sought treatment because "[ he ] was in pain" and he was "getting worse." Hassan testified that during his evaluation, plaint iff "primarily complain[ed] of symptoms going to his left shoulder area." Plaintiff desc ribed the shoulder pain4 A- 1847

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as "sharp," "sever[e]," and "limiting [at] times." Plaintiff told Hassan that he had been in a previous auto accident in 2012 "where he [had] sustained a cervical spine fracture, rib fractures, and a left should er injury." However, plaintiff informed Hassan that after treatment, which include d cervical fusion surgery, he had a full recovery and "no pain in his left should er" until the recent October 12,

2017 , accident. 1 Upon examination, Hassan found "measurable weakness " in plaintiff's left shoulder "compared to the other side." Initially, Hassan diagnosed plaintiff with "bursitis," "impingement," and "[ muscle] strain" in the left shoulder. He prescribed "physical therapy," "anti-inflammatory m edications," and "modif[ied] . . . activities." On November 16, 2017, plaintiff returned to Hassan, complaining of "localized . . . left shoulder pain. " Despite attending physical therapy, plaintiff told Hassan "his pain was worsen ing and he was struggling more and more in the use of his shoulder[ and] . . . overhead activities." Hassan referred plaintiff for an MRI.

1 Plaintiff reported that after the 2012 accident, he received a cervical spine MRI on January 30, 2012, and was "diagnosed . . . a s having multiple herniated discs . . . in his neck that were pressing on the n erves and . . . caus ing pain to emanate out into his arms." Plaintiff underwent ce rvical fusion surgery on February 22, 2012, and continued to receive treatme nt until approximately August 2013, when plaintiff stopped experiencing si gnificant pain.5 A- 1847

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When plaintiff returned to Hassan on December 14, 2017, Hassan reviewed plaintiff's December 11, 2017, MRI results and found nothing significant in plaintiff's left shoulder that would explain the "severity of [plaintiff's] symptoms." Given plaintiff 's "prior history of cervical spine surgery and fusion," Hassan believed plaintiff's "symptoms may be related to the cervical spine pathology," and "referred him for a cervical spine MRI." In addition, Hassan referred plaintiff to Landa, "a sp ine specialist" in the same practice. During the December 14, 2017, visit, pla intiff also told Hassan that he

had been involved in another auto accident on Decem ber 4, 2017, during which he "hurt [his] nose." However, according to Hassan, there was no change i n plaintiff's symptoms as a result of the December 4, 2017, accident. 2 On January 11, 2018, plaintiff received a cervical spine MRI. Plaintiff returned to Hassan on February 5, 2018, and continu ed to express the same complaints of "pain ," "weakness," and "limited motion" in his left shoul der.

Hassan reviewed the MRI and observed "a substantial disc herniation . . . on the

2 Plaintiff testified that during the December 4, 201 7, accident, he broke his nose "when the air bag deployed," causing "[ t]he cover on the steering wheel" to strike his face. Plaintiff was taken to Robert Wood Johnson University Hospital by ambulance. A lthough plaintiff reported feeling no other injuries besides the broken nose, he was placed in a cervical collar in accordance with "standard [hospital] procedure. "6 A- 1847

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left-hand side, causing pressure on the spine." Ha ssan believed the MRI "explain[ed] a lot of what [plaintiff] was feeling and correspond[ed] to his symptoms." Considering plaintiff's history and the fact that h e had been asymptomatic after the 2012 accident and cervical f usion surgery, Hassan opined that the "neck injury" plaintiff sustained i n the October 12, 2017, accident "caus[ ed ] his . . . new[-]found symptoms."

Based on Hassan 's referral, Landa, who was qualified as an expert in the field of "orthopedic biomechanics and spine surgery ," evaluated plaintiff on February 22, 2018. The evaluation revealed that plaintiff had "limited painful active range of motion of the cervical spine," "ten derness in the palpitation," and "muscular spasms." Landa detected "some pinching of a nerve in the nec k," which sent "a shock of pain . . . down [plaintiff's ] left arm" and "numbness in his fingers." Landa also examined plaintiff's medical records, ra nging from 2012 to present. Landa noted that plaintiff had consistent ly complained of "[ n] eck pain" and "left shoulder pain" at the emergency room imme diately following the October 12, 2017, accident as well as during the en suing physical therapy

sessions. Landa was also aware of plaintiff's December 4, 201 7, accident and

reviewed the medical records associated with that ac cident, including a CT scan7 A- 1847

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of the neck and plaintiff's complaints of "[h]ead" and "facial pain" while at the

emergency room. Based on his review, Landa opined that the December 4, 2017, accident "did[ not] cause any significant neck inju ry." In addition, Landa reviewed plaintiff's 2018 cervic al spine MRI, which "showed a disc herniation at C5-6 pressing on the n erves on the left." Landa compared plaintiff's 2017 MRI with his 2018 cervica l spine MRI, noting that plaintiff "had a normal shoulder MRI and yet a seve re problem . . . [in] the cervical spine MRI, . . . ma[king] it quite clear t hat his problem was not his shoulder, but, rather, his neck," which "correspond ed with his symptoms and his physical examination." Landa also examined plainti ff's 2012 MRI results, where the herniation present in the 2018 cervical spine M RI did not appear. After some additional confirmatory testing, Landa c oncluded that plaintiff had a "traumatically induced C5-6 disc herniation." Landa opined that plaintiff's "[c]ervical disc displacement" was caused by the Oc tober 12, 2017, accident and that it was "a permanent condition." 3 Initially, Landa recommended "cervical epidural injection," which plaintiff received. How ever, Landa acknowledged

3 In contrast, defendants' expert, Dr. Wendell Scott, who was also qualified as an expert in the field of orthopedic medicine and o rthopedic surgery, opined that plaintiff "had preexisting disease at the C5-6 leve l dating back to 2012," which condition "was permanent prior to 2017."8 A- 1847

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that "the relief would almost certainly be, at best , temporary." Ultimately , when plaintiff continued to complain of "persistent seve re neck and left upper extremity pain, numbness and tingling in his left h and," Landa recommended cervical spinal surgery. Plaintiff underwent the surgery on May 24, 2019. According to Landa, although the surgery "reduced h is pain," plaintiff still has "residual pain which will almost certainly persist for the rest of his life" along with "some degree of functional limitations." At the close of defendants' case, plaintiff twice m oved for a directed verdict on the issue of causation, arguing defendan ts had failed to provide competent proof that plaintiff's injuries were not caused by the October 12, 2017, accident. In opposing the motions, defense counse l explained to the judge that the defense position throughout the trial had been that "the need for the surgery was the result of the December 2017 acciden t or perhaps it was the result of the adjacent segment syndrome." For example, du ring opening statement, defense counsel had asked the jury to focus on "whe ther there was any diagnosis or any treatment . . . in between the October 2017 accident and the December

2017 accident." During cross-examination, Hassan had been questione d about the fact that plaintiff "had been treated strictly for his shoulder" up until9 A- 1847

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December 2017, when the treatment switched to his n eck. The judge denied plaintiff's motions, concluding there was a factual dispute regarding causation. During a charge conference conducted prior to closi ng statements, defendants sought to "remove the language instructi ng [the] jury [that defendants bore] the burden of establishing that th e injury suffered related to a subsequent December accident." Defendants argued the charge improperly shifted the burden of proof to the defense on the i ssue of causation. The judge denied the request. Thereafter, during summation, defense counsel reite rated that he had asked the jurors "to see if there[ was] any treatme nt for the neck in between the

October accident and the December accident and ther e was[ not]." Defense counsel also pointed out that although plaintiff "d enie[d] that he injured his neck in [the December] accident," nonetheless, he was tr ansported to the emergency room by ambulance where he was " put . . . in a cervical collar" and underwent

"a CAT scan of the neck." Additionally , defense counsel stressed that "[i]t [was] the defense's position . . . that the neck surgery was not related" to the October

2017 accident because plaintiff "had no treatment" to h is neck "until an accident . . . that happened afterwards." Following summations, the judge charged the jury a s follows:10 A- 1847

- 22 [P]laintiff alleges he sustained permanent injury t o his cervical spine as a result of the collision and inc urred medical expenses to treat that injury. Defendant disputes the nature and severity of . . . plaintiff ' s damage claim.

. . . . The burden of proof is on the plaintiff to establis h his claim by a preponderance of the evidence. In o ther words, if a person makes an allegation then . . . t hat person must prove the allegation. In this action, . . . plaintiff . . . has the burde n of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues: The injuries suffered by . . . plaintiff . . . were the result of the October 12[], 2017[,] incident and he suffered and will suffer past and future pain, disa bility, impairment, and loss of enjoyment of life. . . . [D]efendants . . . have the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issue: The injur[ies] suffered by plaintiff are not the result of the incident, but the result of a subsequ ent accident. On December 9, 2022, the jury returned a verdict i n favor of plaintiff. Defendants moved for a new trial pursuant to Rule 4:49 -1, again objecting to the jury instruction that defendants bore the burde n of proving that plaintiff's injury was caused by the December 2017 accident. Following oral argument11 A- 1847

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conducted on February 3, 2023, the judge entered an order den ying the motion. In an oral opinion, the judge rejected defendants' contention, finding "that there ha[d] been no clear and convincing miscarriage of j ustice . . . warranting a new trial," and "[n]o party [had been] prejudiced by th e jury charge . . . because it clearly outline[d] each party's trial position." The judge summarized defendants' arguments as follo ws: [D]efendant[s] move[] for a new trial, arguing ther e was an improper shifting of the burden upon . .

. defendants to disprove plaintiff's claim. Defendan t[s] assert[] the . . . jury charges were contradictory and confusing because plaintiff bore the burden of prov ing the October 12, 2017[,] incident caused his injury.

. . . [D]efendants contend the [c]ourt improperly require d the defense to establish that the December accident was the probable cause of plaintiff's injury . . . .

. . . .Defendants argued that under Rodriguez v. WalMart Stores, Inc., 237 N.J. 36, [66-68] (2019), the y were raising the possibility, and not the probabili ty, that the injury sustained by . . . plaintiff [was] the r esult of or exacerbated by the December 4, 2017, accident. On that basis, defendants contend they need not offer any competent proof to show a causal relationship betwe en injuries sustained by plaintiff and any particular incident. The judge determined that defendants' reliance on R odriguez was misplaced because Rodriguez did not waive defendant s' "burden of proof in12 A- 1847

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showing the December 4[], 2017 [,] accident was a potential cause of plaintiff's injuries." According to the judge, "[p]laintiff's burden was t o show that the October 12, 2017[,] incident caused those injuries and that burden was never shifted." On the other hand, "defendants' case sou ght to demonstrate plaintiff was injured or suffered exacerbation of an injury in the subsequent December 4,

2017 [,] accident." The judge explained:

Defendants elicited testimony in crossexamination to create an inference that plaintiff suffered neck injuries as a result of the December accident. Further, defendants have attempted to cr eate an impression that plaintiff['s] injuries sustained in 2012 were exacerbated not only by the October incident, but by some other incident, namely, the December accident. Defendants highlighted that plaintiff received no treatment to his [n]eck after the October [accident], but noted plaintiff did seek diagnosis and treatment after the December accident , which included the CT scan of his neck. Finally, defendants attempted to place into the minds of the jurors the possibility that a scan tak en after the December accident showed progression or deterioration of plaintiff’s neck condition existin g since 2012. Again, these assertions imply that defendant sought to establish a link between the December accident and the plaintiff’s injuries or exacerbati ons thereof. Defendants failed to put in competent pro of on the record to support any of these possibilities, . . . yet defendant[s] now seek [] a new trial, arguing their own13 A- 1847

- 22 failure to link plaintiff's injuries to the Decembe r accident are grounds for this relief. Although testimony is admissible to show possibilities that caused or exacerbated plaintiff ' s injuries, once admitted, defendants bear the burden of proving these possibilities by way of competent pro of.

. . . .

. . . Applying defendants ' logic, plaintiff would be burdened with not only proving his contention, but also disproving any abstract possibility raised by defen dants in the absence of competent proof to support such abstract possibilities. Essentially, defendant[s] would bear no burden whatsoever. Any unsupported allegation would remain for the jury to consider un less the plaintiff affirmatively disproved them. It wou ld be contrary to the basic principles of the American ju stice system to have a party argue a position for which t hey are not advocating. [( Citation omitted).] To further support his ruling, the judge also consi dered the rationale for denying "plaintiff's motion for a directed verdict at the c lose of defendant[s'] case ." Subsequently, on February 16, 2023, the judge enter ed a conforming order for judgment in plaintiff 's favor, and this appeal followed. On appeal, defendants reprise the arguments rejected by the ju dge for our consideration. Based on our review of the record and the applicabl e legal principles, we too find defendants' arguments unavailing.14 A- 1847

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The principles governing our review are well settle d.

"A jury verdict is entitled to considerable deference and 'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, th at the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v

. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J

. 588, 597-98 (1977)). A trial court therefore grant s a motion for a new trial only "if, having given due re gard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convin cingly appears that there was a miscarriage of justice und er the law." Crawn v. Campo, 136 N.J. 494, 511-12 (1994) (quoting R. 4:49 -1(a)). "The standard of review on appeal from decisions on motions for a new trial is the same as that govern ing the trial judge

— whether there was a miscarriage of justice under the law." Risko, 206 N.J. at 522; ac cord R. 2:10 -1 ("The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law."). We have explained that a "miscarriage of justice" can arise when there is a "manifest lack of inherently credible ev idence to support the finding," when there has been an "obvious overlooking or under-valuation of crucial evidence," or when the case culminates in "a clearl y unjust result." Risko, 206 N.J. at 521-22 (quoting Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996)). [Hayes v. Delamotte, 231 N.J. 373, 385- 86 ( 2018 ).]15 A- 1847

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Defendants seek a new trial on the ground that the jury verdict was the result of an erroneous jury charge. Because approp riate and proper jury instructions are essential for a fair trial, Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 256 (2015), we have held that a jury inst ruction that misleads a jury may require a reversal and a new trial, Vallejo by Morales v. Rahway Police Dep't, 292 N.J. Super. 333, 342 (App. Div. 1996) ; see also Washington v. Perez , 219 N.J. 338, 351 (2014) ("Generally, 'erroneous in structions on material points are presumed to be reversible error.'" (internal qu otation marks omitted) (quoting McClelland v. Tucker, 273 N.J. Super. 410, 417 (App. Div. 1994))). Indeed, "[a] jury is entitled to an explanation of the applicable legal principles and how they are to be applied in light of the parties' contentions and the evidence produced in the case." Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002) (quoting Rendine v. Pantzer, 276 N.J. Super. 398, 431 (App. Div. 1994)). To that end, "[j]ury charges 'must outline the func tion of the jury, set forth the issues, correctly state the applicable law in under standable language, and plainly spell out how the jury should apply the legal princ iples to the facts as it may find them.'" Prioleau, 223 N.J. at 256- 57 (alteration in original) (quoting Velazquez by Valazquez v. Portadin, 163 N.J. 677, 6 88 (2000)).16 A- 1847

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"Nonetheless, not every improper jury charge warran ts reversal and a new trial. 'As a general matter, [appellate courts] wi ll not reverse if an erroneous jury instruction was "incapable of producing an unj ust result or prejudicing substantial rights."'" Id. at 257 (alteration in o riginal) (quoting Mandal v. Port Auth. of N.Y. & N.J., 430 N.J. Super. 287, 296 (App . Div. 2013)). Still, "[i]n civil matters, the trial court should give an instr uction that appropriately guides the jury on the legal basis of a plaintiff's claim or a defendant's affirmative defense, so long as there is a reasonable factual b asis in the evidence to support

that claim or defense." Walker v. Costco Wholesale Warehouse, 445 N.J. Super. 111, 120 (App. Div. 2016). In our review of a jury charge, we "examine the cha rge as a whole, rather

than focus on individual errors in isolation." Vis cik, 173 N.J. at 18. "Stated differently, an appellate court must consider the l anguage surrounding an alleged error in order to determine its true effect ." Ibid.; see also Mogull v. CB Commer. Real Est. Grp., 162 N.J. 449, 464 (2000) ("T here is no reversible error 'where the charge, considered as a whole, adequatel y conveys the law and is unlikely to confuse or mislead the jury, even thoug h part of the charge, standing alone, might be incorrect.'" (quoting Fischer v. Ca nario, 143 N.J. 235, 254 (1996))).17 A- 1847

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Applying these principles, we discern no basis to intervene. Defendants contend the jury charge "misstated" their position because "[they] did not claim the injuries were caused by the subsequent accident ." Instead, defendants proffer that their position "was that . . . Landa f ailed to properly consider the facts of the subsequent accident when formulating h is opinion" regarding plaintiff's injuries. Thus, defendants reiterate t hat the "jury charge improperly shifted" the burden to them to "prove something tha t . . . [they] had not argued" and "to disprove plaintiff's claims." As such, def endants assert "[t]he combination of the misstatement of [their] position " and "the imposition of a duty . . . to prove something they had not argued" resulted in a charge that was "contradictory ," "confusing," and "misleading." Our Supreme Court has "long recognized that every d efendant, in response to an allegation that his negligence has caused inj ury, possesses the right of demonstrating by competent evidence that that injur y 'could' have been caused, wholly or partly, by an earlier accident or by a pr e-existing condition." Davidson v. Slater, 189 N.J. 166, 187 (2007) (quoting Paxton v. Misiuk, 34 N.J. 453, 460-61 (1961)). However, a defendant "must sh ow that the evidence has some 'logical relationship to the issue in the case .'" Allendorf v. Kaiserman Enters., 266 N.J. Super. 662, 672 (App. Div. 1993) (quoting Paxton, 34 N.J. at18 A- 1847

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460). "[T]his logical relationship generally must be established by appropriate expert medical opinion." Ibid. As such, the defendant must provide "competent proof from which it could be found that the injury [at issue] was . . . attributable to" a different incident, rather than to just the i ncident involving the defendant. Paxton, 34 N.J. at 461. "The general test of admis sibility of such evidence is 'one of possibility, rather than probability.'" Al lendorf, 266 N.J. Super at 673 (quoting Paxton, 34 N.J. at 461). Here, defendants do not dispute that the judge cor rectly charged the jury that plaintiff had the burden to prove that his inj uries were the result of defendants' negligence during the October 2017 acci dent. See Reichert v. Vegholm, 366 N.J. Super. 209, 214 (App. Div. 2004) ("[T]he general rule is that 'the burden of proof that the tortious conduct of t he defendant has caused the harm to the plaintiff is upon the plaintiff.'" (quo ting Restatement (Second) of Torts, § 433B(1) (Am. L. Inst. 1965))). Instead, de spite consistently advocating throughout the trial that the December 2017 accident, rather than the October

2017 accident, caused plaintiff's neck injuries, defenda nts now assert that they "did not argue, either during the motion [to bar] o r at trial, that the December accident caused the injury," and the jury charge th ereby improperly shifted the burden of proof to them. Defendants' contention is disingenuous.19 A- 1847

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In response to plaintiff's allegation that the Octo ber 2017 accident with defendants was the sole cause of plaintiff's neck i njury, defendants countered that the neck injury was likely caused by the later December 2017 accident. Although defendants were free to assert that another inciden t caused or otherwise contributed to plaintiff's injuries, see Davidson, 189 N.J. at 187, defendants were obligated to support that contentio n with competent medical testimony , Paxton, 34 N.J. at 461, which they failed to do

. In fact, defendants conceded they had no "[ medical] proofs" to support their contention "that the December accident caused [plaintiff's] injury." Although defendants produced Scott as an expert witness, Scott did not offer an opinion on whether the December accident had any effect on plaintiff's con dition. Absent competent proof, consideration of defendant' s position regarding the December 2017 accident would have invited the j ury to engage in unsupported speculation. Based on our examination of the charge as a whole and the governing law, we are satisfied the jury in struction properly precluded the jury from speculating as to the cause of plaint iff's injuries without appropriate corroboration. Thus, the judge correct ly denied defendants' motion for a new trial on the basis of a purportedly erron eous jury charge.

Affirmed.